Director of Public Prosecutions v Waterhouse

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0195

DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
HAYDEN WATERHOUSE	Accused

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JUDGE:	Champion J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 October 2024
DATE OF SENTENCE:	20 February 2025
CASE MAY BE CITED AS:	DPP v Waterhouse
MEDIUM NEUTRAL CITATION:	[2025] VSC 67

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CRIMINAL LAW — Sentence — One charge of dangerous driving causing death — Sentenced to four years’ imprisonment with a non‑parole period of three years — Crimes Act 1958 (Vic) — Sentencing Act 1991 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Crown	P Thorp L Gurry	Office of Public Prosecutions
For the Accused	J Desmond S Ranjit	Hofman Carroll Criminal Law

HIS HONOUR:

Introduction

Hayden Waterhouse, on 9 August 2024, you pleaded guilty to one charge of dangerous driving causing death contrary to section 319(1) of the Crimes Act 1958 (Vic). By driving a motor vehicle in a manner that was dangerous to the public having regard to all the circumstances of the case, you caused the death of Jamerson Ross. Mr Ross died on 8 October 2022.

The maximum penalty for the offence of dangerous driving causing death was at the time of your offending, and remains, 10 years’ imprisonment.

Circumstances of the offending

The factual circumstances of your offending are largely agreed between the parties, with the exception of the position and use of shopping trolleys at the collision scene. I will discuss and rule on this issue below.

The following is a brief description of the agreed facts.

On 8 October 2022, Jamerson Ross went to the Westernport Hotel to celebrate his 23^rd birthday with a group of friends. The group arrived at the hotel at approximately 7:00pm.

Shortly after 10:00pm, the publican told the group that they could have one more drink and stay for a further half an hour. The publican described the group as being pretty well behaved, but was concerned that they might take their drinking and celebrations too far if he allowed them to remain at the hotel.

At approximately 10:47pm, Mr Ross and his friends left the hotel and decided to continue the celebrations at Mr Ross’ home. Some headed in the direction of Mr Ross’ home by car while others, including Mr Ross, commenced walking. Those walking headed in the direction of a Coles supermarket carpark. A friend of Mr Ross, Lochlainn Brown, grabbed a shopping trolley and encouraged Mr Ross to get in the trolley so that he could be pushed around. After this occurred, the group left the carpark and continued along the street, with members of the group spread out across the road and the footpath.

Shortly before 11:00pm, your partner, Ciara Crawley, was driving home from work. During the drive, Ms Crawley observed a large group of people, including a person in a shopping trolley, spread out across Victoria Street. This group was Mr Ross and his friends. Ms Crawley described one member of the group, who had blonde dreadlocks, running towards her and yelling in an aggressive manner. This person also ran to the back passenger side of Ms Crawley’s car and punched the external rear view mirror. The other group members appeared to be aiming a bunch of shopping trolleys which had been connected together at Ms Crawley’s car. A further person appeared to run at the car before pulling away at the last moment.

Ms Crawley, who was scared, left the interaction and drove to her parents’ house. At 10:57pm, Ms Crawley messaged you, Mr Waterhouse, and said, ‘I just ran over someone’. You did not respond to this message, however, you immediately drove to Ms Crawley’s parents’ house, at which Ms Crawley explained what had happened. Ms Crawley indicated that she ‘need[ed] to know if any of the guys on Victoria Street [were] okay’. You then left Ms Crawley’s parents’ house without telling Ms Crawley what you were planning to do, other than stating that you were going to purchase cigarettes. Ms Crawley encouraged you to be careful and, once you had left, sent you the following text messages between 11:02pm and 11:05pm:

(a) ‘they were FUCKWHITS. A second guy tried to jump in front of me too’;

(b) ‘guy with white jumper and blonde hair is who HIT ME really’;

(c) ‘fuck that’s all I need;’

(d) ‘What’s happening’; and

(e) ‘What have I done’.

You drove from Ms Crawley’s parents’ house and located Mr Ross and his friends spread out along Cool Store Road in Hastings. You drove past some of the group and then stopped your car at the intersection of Gold Court and Cool Store Road. You spoke loudly and angrily to Travis Lowns, a friend of the deceased, asking him, ‘who hit my missus’ car?’ and ‘is anyone hurt?’. Mr Lowns responded that they did not hit Ms Crawley’s car.

Another member of the group then kicked the back of your car. At this time, you put your foot down and accelerated across the wrong side of the road and towards Mr Ross who was standing near the kerb.

Although you did not intend to do so, you collided with Mr Ross and drove over him, causing his death. You then continued to accelerate and left the scene. You had never met and did not know Mr Ross before these events.

A couple who had not been part of Mr Ross’ group arrived at the scene immediately after the collision and, after having been told about what happened, followed your car. They overtook you, approached you and said, ‘you just ran someone over, cunt’. You responded saying ‘nah mate, wasn’t me’ and drove off.

You continued to drive and stopped on the side of the road in a neighbouring area, before giving your car keys to a friend.

At 11:02pm, very shortly after you struck Mr Ross, several of his friends rang 000. Police arrived at 11:07pm and performed CPR until paramedics arrived at 11:14pm. At 11:41pm, Mr Ross was pronounced deceased.

At 4:28am, you were interviewed by police at the crime scene and told them, ‘I drove down here earlier, I was involved’.

Investigation

A post‑mortem examination of Mr Ross’ body confirmed his cause of death as a head injury sustained in a motor vehicle collision. In the circumstances, I do not need to provide more detail than that.

Victim Impact Statements

Jamerson Ross was 23 years old when he died. Mr Ross lived in Hastings, was an electrician by trade, and was loved by his family and friends. The Court was provided with six Victim Impacts Statements. At the plea hearing, the statements of Jewel Ross and Chantelle Ross were played to the Court by way of pre‑recorded video.

Chantelle Ross

Chantelle Ross is Mr Ross’ mother. Ms Ross speaks of the ‘profound and irrevocable impact that the loss of [her] son, Jamerson, has had on [her] family and community’. Ms Ross mourns that her son was ‘a sought after marine‑electrician’ who had ‘ambition and financial savvy’. Her son ‘had a passion for life that was infectious’ and in addition to his work, he ‘was deeply connected to those around him’. The loss of her son is ‘unbearable’. Ms Ross’ family is ‘forever altered’, ‘each day is [a] struggle to keep moving forward’, and ‘the emotional toll has seeped into every aspect of [her] life’.

Following the death of her son, Ms Ross has lost her partner and many close friends who once provided comfort and support. Ms Ross is suffering from severe depression and anxiety compounded by insomnia, and is currently engaged with a psychologist, grief counsellor, sleep specialist and holistic therapists, however her pain continues to feel insurmountable. Ms Ross looks to the future with fear. She writes that ‘the adverse effects of this crime will follow [her] for the rest of [her] days’. Ms Ross reiterates that ‘the adverse effects of this crime are profound and enduring, leaving scars that will last a lifetime’.

Several photographs of Ms Ross’ son were attached to her Victim Impact Statement.

Jewell Ross

Jewell Ross is Mr Ross’ sister. In her statement, Ms Ross describes her brother as her ‘protector’, ‘a perfect son, brother, cousin and friend’ and a ‘supportive and flawless father’. Mr Ross’ passing has meant that ‘the most sacred part of [Ms Ross’] life [was] ripped away’. Ms Ross describes the ‘the gaping hole in [her] heart that nothing can fill’. Ms Ross states that ‘every day is a fight’, ‘[her] sleep doesn’t feel restful’, and that ‘[the family] feel like [they are] living half [their] lives’.

Lucy Dean

Lucy Dean is Mr Ross’ partner. Ms Dean mourns a ‘future which [they] will never have’. Ms Dean describes being unable to feel excitement about anything for more than a ‘split second’ before she is reminded of the loss of her partner. ‘What is the point of getting excited when you don’t have someone to share it with?’, Ms Dean asks in her Victim Impact Statement. Ms Dean says that ‘[Mr Ross] was [her] safe place. [Mr Ross] was [her] everything … Jamerson’s passing will stay with [her] for the entirety of [her] life’. Ms Dean also attached to her Victim Impact Statement a photograph of her and Mr Ross smiling together.

Charlotte Pingiaro

Charlotte Pingiaro is Mr Ross’ aunt. Ms Pingiaro writes that, given there was only an eight‑year age gap between her and Mr Ross, she often felt that their bond was like that of ‘siblings’. Ms Pingiaro looked up to Mr Ross as he reached his twenties. She describes Mr Ross as ‘selfless’ and possessing a generosity that knew no bounds. While Ms Pingiaro would never change this commitment, she has taken on the responsibility of caring for her sister, Mr Ross’ mother. This responsibility has significantly affected Ms Pingiaro’s ability to function and manage her own life.

Ms Pingiaro writes that the loss of Mr Ross is a ‘void that can never be filled’. The emotional impact is ‘immeasurable’. Ms Pingiaro lives in a ‘constant state of helplessness and worry’ for her sister. Ms Pingiaro writes that ‘[her] family will carry this heart ache forever’. A photograph showing Mr Ross with the Pingiaro family is attached to Ms Pingiaro’s Victim Impact Statement.

Sheree Corfield

Sheree Corfield is Mr Ross’ aunt. Ms Corfield wrote her statement to ‘express the profound and catastrophic impact of losing [the family’s] beloved nephew, cousin, and best friend, Jamerson’. Ms Corfield celebrates Mr Ross’ work ethic, passion and trustworthiness, as well as his success in the ‘marine electrical business’, highlighting that he had purchased his first home and was on the verge of purchasing an investment property. Ms Corfield describes the ‘emotional impact’ of Ms Ross’ passing that has affected ‘[her] whole family … there is no end to [their] pain’. Only six days before he was killed, Mr Ross had called his nephews to say that he purchased a boat and would take them out on the bay. Ms Corfield’s family’s life is now ‘consumed with sadness and grief as [they] navigate [their] lives after such a senseless crime’.

Thomas Fergusson

Thomas Fergusson is Mr Ross’ friend. Mr Fergusson describes the negative mental health impacts he has suffered as a result of Mr Ross’ death. Mr Fergusson has had ‘many disturbed sleeps’ from which he wakes ‘in a panic and hyperventilating’, and notes that the ‘scream and sounds of the [crime] scene will never be erased from [his] mind’. Mr Fergusson speaks to the community‑wide impact of this death, writing that ‘it did truly change the lives of hundreds of people’, and laments that Mr Ross ‘deserved the life we all dream of’.

The Victim Impact Statements and their attachments are testament to the grief and profound sense of loss caused by the death of Mr Ross, a young man who was loved and admired, with a good future ahead of him.

Procedural history

Hayden Waterhouse, you were initially charged with one count of murder, and alternatively, manslaughter, to which you pleaded not guilty. The matter was therefore prepared for trial.

On 9 May 2024, a case conference was conducted before her Honour Justice Fox in this Court. Following this case conference, you offered to plead guilty to a charge of dangerous driving causing death. The prosecution rejected that offer.

On 28 May 2024, your trial commenced before me. On the sixth day of the trial, in the course of witness Lochlainn Brown’s evidence, the defence submitted that the prosecution case extended beyond what had initially been put to the jury, and included new evidence that you deliberately drove at various people before colliding with Mr Ross. It was submitted that this evidence was prejudicial and inadmissible and a jury discharge application was made.

On 6 June 2024, I granted the application and the jury was discharged.

Subsequently, an application was made for a sentence indication on one charge of dangerous driving causing death. This application was not opposed by the prosecution.

On 24 July 2024, your sentence indication application proceeded before me. The parties made oral and written submissions. On your behalf, counsel provided the Court with letters from an Alcohol and Other Drug counsellor, Donna Chandler, a letter from a forensic psychologist, Dr Ashmyra Voogt, and a bundle of course completion certificates.

On 30 July 2024, I delivered the ruling on the application and indicated that should you plead guilty to a charge of dangerous driving causing death, I would impose a maximum sentence of four and half years’ imprisonment with a non‑parole period of three and a half years.

On 31 July 2024, you were arraigned and pleaded guilty to one charge of dangerous driving causing death.

On 4 October 2024, a plea hearing was conducted during which parties made oral submissions in addition to their written submissions. The prosecution read out or played six Victim Impact Statements to the Court. On your behalf, defence counsel provided the Court with several character references, a bundle of course completion certificates, test results from a urine screening, the same letters from the Alcohol and Other Drug counsellor, Donna Chandler, and forensic psychologist, Dr Ashmyra Voogt, which were filed in the sentence indication, and an apology letter authored by you in which you express ‘deep remorse’ for your actions. At the plea hearing, oral submissions were made about the disputed facts which I discuss later in these reasons.

Personal circumstances
Background

You were 34 years old at the time of your offending and you are now aged 36. You were born and raised in the south‑eastern suburb of Frankston. You have since resided in Hastings and have never lived outside of Victoria.

Regarding your family, your mother was a single parent. Your parents divorced when you were very young. You first met your biological father when you were aged 16 and your relationship with him has been fraught. You have witnessed family violence between your mother and her partners, however there was never any police intervention. You regularly witnessed your mother smoking cannabis. You maintain that your mother is extremely supportive of you, and characterise her as one of your biggest supports in the community.

Your brother died at age 19 in a car accident which occurred 11 years ago. Your older sister resides in America, where she holds a basketball scholarship and is studying at university.

You have one daughter aged 10 from a previous long‑term relationship. You would see your daughter on weekends while in the community and, since being remanded, you have kept in contact by telephone.

You have been in your current relationship with Ciara Crawley for the last five years. Ms Crawley has two children aged 10 and 15. You are said to have a good relationship with her and her children.

Regarding your education, you attended Murdoch Primary School and Mornington Secondary College up to year 11. You received average results, and you were an average student. You discontinued year 11 due to experiencing bullying. You felt that, as a result of the bullying, you did not belong in the school environment and you subsequently moved into the work force.

As to your work history, you have worked for civil construction and earth moving firms, as well as being a snow clearer in the Victorian high country. Your most recent employment was with a friend’s father up until your remand.

You have previously misused methamphetamines, cannabis and speed. You became abstinent after the birth of your daughter, however, re‑engaged in drug use when you separated from your first partner. You are currently abstinent and have been so since 2020.

Following your release back into the community, you intend to initially reside with your mother before eventually returning to Hastings and resuming work. It is said that you enjoy the support of your mother, partner and children. You intend to pursue a prosocial lifestyle upon your release.

Submissions for the defence

At the plea hearing, your counsel relied on the submissions made on your behalf at the sentence indication hearing, as well as further oral submissions regarding the disputed facts.

Offence gravity and moral culpability

Counsel submits that your offending cannot be categorised as a serious example of this type of offence given that:

(a) you were licensed to drive at the time of the offending;

(b) you were not intoxicated at the time of the offending;

(c) the offending lacks any sophistication or organisation and it was not protracted. Although it can be said that you attended the crime scene to speak to the group, no adverse inference can be drawn from this, particularly in respect of premeditation;

(d) the prosecution accident reconstructionist opined that your speed on impact was between 30 kilometres and 40 kilometres per hour and accepted that you could have mistaken your collision with the deceased as your vehicle mounting a kerb. Further, at the plea hearing, counsel noted that there was some conjecture regarding whether you had in fact been put on notice that you had hit a person and no such admission was made in your record of interview;

(e) it is submitted that the witnesses for the prosecution were unreliable and lacking credibility to the extent that they were willing to ‘say anything’ to convict you of an offence. It is further submitted that a jury would have been highly unlikely to have accepted the multiple different versions of events given by the witnesses and the prosecution case was therefore weak. If this is accepted, it is then submitted that your preparedness to enter a plea of guilty carries greater weight in mitigation;[1] and,

(f) the objective gravity and moral culpability of your offending must be reduced given that it occurred in a ‘defensive manner’. Your car had been set upon by a large group of highly intoxicated men and, albeit dangerously, you accelerated away from the scene in fear.

[1]Citing DPP v Bryan [2014] VSCA 54.

Plea of guilty

It is submitted that, in addition to the mitigation proffered by the weakness of the prosecution case, your plea of guilty should result in a meaningful discount to your sentence, as:

(a) it was entered at the earliest opportunity. You indicated before your trial began that you would plead guilty to dangerous driving causing death. This offer was rejected and therefore further delay was incurred regarding resolution of this matter. It was submitted that, in effect, you were forced to proceed to trial until the prosecution withdrew the homicide charges;

(b) it spared the deceased’s family from the trauma of giving or re‑giving evidence in a new trial and re‑living the most profoundly difficult event in their lives; and

(c) it demonstrates your willingness to accept full responsibility for the offending and facilitate the course of justice.[2]

[2]Citing Singh v The Queen [2022] VSCA 178.

Counsel further submits that the guilty plea ought be given significant weight given that you had suffered the unnecessary pressure of homicide charges on your conscience until the matter resolved.

Remorse

It is submitted that your plea of guilty is relevant in the context of remorse. Counsel contends that your early offer to plead to dangerous driving causing death demonstrates your willingness to take full responsibility for your criminality. Further, it is highlighted that in your record of interview, you said: ‘Like, I shouldn’t have even went down to check … my life is now going to be ruined, and … poor fella’. I note that you expressed remorse in your letter to the Court.

Admissions and co‑operation with police

It is submitted that your admissions to and cooperation with police significantly narrowed their investigation and assisted the course of justice. It is noted that you presented yourself voluntarily to the police station for a record of interview. Further, in that interview, you placed yourself at the crime scene and admitted that you were the driver of the subject vehicle. Counsel contends that this conduct is mitigatory in the context of your sentence, which is consistent with the circumstances which occurred Singh v The Queen.[3]
[3][2022] VSCA 178.

Prior criminal convictions

Counsel highlights that you have no violent prior convictions and only minor driving matters on your record. Therefore, it is submitted that the term of imprisonment you serve for this offending will be the longest time you have ever experienced in custody. Counsel contends that imprisonment will have a deleterious effect on you and diminish your prospects of rehabilitation.

Prospects of rehabilitation

Your counsel contends that your rehabilitative prospects are good. You have the support of your family and a strong employment history. You are said to have always been a working‑class person who has provided the best for his partner and children.

Parsimony

Counsel submits that the Court must apply the principle of parsimony to your sentence as your case requires the imposition of a custodial sentence that accounts for punitive sentencing purposes.

Sentencing statistics

As to current sentencing practices and comparable cases, it is submitted that the charge of dangerous driving causing death involves a wide range of circumstances and caution ought be exercised when making any comparisons with other matters of this nature.

Counsel draws the Court’s attention to the following sentencing statistics:

(a) Sentencing outcomes for dangerous driving causing death:

(i) 49.7% receive a custodial sentence;

(ii) 48.4% receive a community correction order; and

(iii) 1.9% receive a youth justice order.

(b) The minimum imprisonment length is 0.33 years, the maximum is 5.5 years, and the median is two years — this means that half of the imprisonment terms are less than two years.[4]

[4]Sentencing Advisory Council, Dangerous Drive Cause Death Law Higher Courts Sentencing Outcomes, 1 July 2017 to 30 June 2022 < type="1">

The Court’s attention was also drawn to the following passage from Georgiou v The Queen:

For the driving to be dangerous, ‘there must be some feature [of the driving] which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention’.[5]

[5][2022] VSCA 172, [16]; Jiminez v R (1992) 173 CLR 572, 579; 106 ALR 162, 166; 15 MVR 289, 292–3 (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ).

Counsel contends that your acceleration just reached the threshold of dangerous driving and lacked many salient features of such offending, including a number of which I have noted above.

In these circumstances, it is submitted that the Court should impose a term of imprisonment that is well below the median for this kind of offending.

Submissions for the prosecution

The prosecution also relies on its sentence indication submissions for the purposes of this plea.

Relevant principles

The prosecution submits that the sentencing principles regarding serious driving offences are well settled. It is contended that denunciation and general deterrence are key considerations, even though it is common for offenders in these types of matters to be remorseful, of good character and possessing excellent rehabilitative prospects. The Court was referred to following principles discussed in DPP v Neethling:

(a) general deterrence must be given considerable weight when sentencing an offender for dangerous driving causing death or serious injury;

(b) a person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment;

(c) the sentence imposed must take into account variations in the moral culpability of the person responsible; and

(d) a custodial sentence will usually be appropriate for this offence, except in cases in which the offender’s level of moral culpability is low.[6]

[6](2009) 22 VR 466.

Mandatory considerations — s 5(2) of the Sentencing Act
Maximum penalty (s 5(2)(a))

It is noted that the maximum penalty for the charge of dangerous driving causing death is 10 years’ imprisonment.

Nature and gravity of the offence (s 5(2)(c)) and culpability (s 5(2)(d))

The prosecution contends that your moral culpability is high and that the offending is at the mid‑range of seriousness for this offence.

In support of this contention, it is noted that you were not unfamiliar with the street on which the collision occurred, and the scene was only in semi‑darkness and lit by street lighting. Further, there was pedestrian activity in the immediate vicinity of your vehicle, including some people who were displaying emotional and potentially erratic behaviour. The prosecution submits that, in spite of the behaviour of those near your vehicle, there would be no substance to a submission of self‑defence on your part. It is contended that, effectively, you ‘put your foot down’ to accelerate in a manner that demonstrates ‘gross indifference’ regarding the welfare of those nearby and was ‘inherently dangerous to the public in all the circumstances’. It is submitted that you collided with the deceased while he was standing upright. There was what appears to have been a tyre mark located across the deceased’s chest. You did not stop after colliding with the deceased.

Despite these matters, the prosecution concedes that there is no evidence that you were travelling in excess of the speed limit of 50 kilometres per hour when you collided with the deceased, and that it appears that you were moving at between 30 and 40 kilometres per hour. The street was straight, had no centre delineation or outer edge lane markings, and no parked vehicles were in the immediate area. It is further noted that the incident was of short duration, lasting only minutes after you first arrived at the scene.

Other sentencing considerations
Impact on the victim (s 5(2)(daa))

The prosecution submits that the Victim Impact Statements discussed above evidence the significant impact Mr Ross’ death has had on his loved ones, in addition to the loss of a human life caused by your offending.

Current sentencing practices (s 5(2)(b))

The prosecution drew the Court’s attention and made submissions with respect to the relevance of several cases.[7] It is submitted that an immediate term of imprisonment is appropriate,[8] and that current sentencing practices represent a guide only.
[7]Stephens v The Queen (2016) 50 VR 740; DPP v Weybury [2018] VSCA 120; Peers v The Queen (2021) 97 MVR 379.
[8]Peers v The Queen (2021) 97 MVR 379, 293–4 [72]–[73].

Previous character, aggravating and mitigating factor (s 5(2)(f)–(g))

The prosecution contends that you cannot be sentenced as a person of good prior character in light of your prior criminal history.

It is further submitted that no mental or physical health issues are relevant which enliven the Verdins principles, nor are there any significant factors in your personal circumstances which mitigate your culpability.

Plea of guilty (s 5(2)(e))

Regarding your plea of guilty, the prosecution acknowledges that your plea clearly facilitates the course of justice and has a utilitarian benefit to the administration of justice.

Mandatory penalty provisions (s 5(2H))

It is submitted that I must sentence you to a term of imprisonment.

Licence disqualification (s 89(2)(a))

It is further submitted that your driver’s licence must be cancelled for a mandatory period of six months.

Disputed facts on the plea

The position and use of a number of shopping trolleys in the area immediately before and after the collision forms a key factual dispute in this proceeding. The parties identify three key pieces of evidence with respect to this matter, namely:

(a) your record of interview;

(b) evidence of the deceased’s friends regarding use of the trolleys in the Coles carpark and on Victoria Street prior to the collision; and

(c) evidence of prosecution witnesses regarding the use of the trolleys immediately prior to and just after the collision.

Reference is also made to photographic evidence of nine trolleys approximately 40 metres away from the collision scene and a note by the police informant detailing a phone call she received from a member of the public complaining about the use of the trolleys by a young group of men near Coles on the evening of the collision.

Counsel on your behalf, in their written submissions, contend that the trolleys were used by the deceased’s group either to threaten or blockade you from leaving the collision scene. At the plea hearing, your counsel clarified this description of the group’s conduct, submitting:

[The Court] should make a finding that trolleys were pushed in the direction of [your] car. [The Court does not] have to make a finding that [the deceased’s group] knew they were pushed in … a threatening or assaultive manner, but from [your] point of view … they were pushed. They were pushed in the path of [your] car, which required [you] to veer to the right.

Upon questioning, counsel accepted that you may not have been ‘required’ to veer right, but you did ‘believe’ that you had to do so in the circumstances alleged.

Counsel argues that various pieces of evidence support these submissions, namely:

(a) the photograph of nine trolleys proximate to the collision scene, as well as a police note that records the deceased’s group using the trolleys in an unsafe manner around drivers prior to the collision;

(b) the prosecution witnesses have given untruthful, unreliable or otherwise recalcitrant evidence about the use of the trolleys such that they are ‘entirely unsatisfactory’ witnesses and their evidence ought for the most part be discounted. None of the witnesses give a plausible account of how the trolleys came to be placed proximate to the collision scene;

(c) your evidence has been consistent and coherent since your police interview regarding the trolleys being pushed towards you at the collision scene, and provides the only plausible account of how the trolleys came to be placed proximate to the collision; and

(d) it must be implied, given the unreliability of the prosecution witnesses and the consistency and coherency of your evidence, that — using your counsel’s words on the plea — ‘these boys, one or more of them, have moved the trolleys away from the immediacy of the crime scene … and put them 40 metres back to exculpate themselves from what they did with the trolleys, not intending that anyone was going to be killed or perhaps even seriously hurt’. It is simply implausible, your counsel submits, that the deceased’s group would leave the trolleys 40 metres from the collision scene just by chance after having pushed them more than half a kilometre from the Coles carpark.

These disputed facts are said to be significant in that, if found, they frame your offending as responsive to, or defensive against, some form of aggression by the deceased’s group. The seriousness of your offending and your moral culpability is to be reduced if you are found to have been confronted by this behaviour. In oral submissions, your counsel went so far as to say ‘if [you] hadn’t had to go around the trolleys, then this whole … fatality may not have occurred’.

I note that there is some independent evidence with respect to the trolleys, namely, CCTV footage showing a line of trolleys being pushed by a number of people. These images provide some evidence of the trolleys being pushed around sometime before the collision occurred.

The prosecution, in response to these submissions:

(a) disputes that the deceased’s group handled the trolleys in a threatening manner or tried to blockade you from leaving the scene of the collision;

(b) accepts that you swerved right to avoid what you perceived to be obstacles immediately before the collision, however, submits that the obstacles were pedestrians, not trolleys; and

(c) contends that regardless of whether you swerved to avoid pedestrians or trolleys, your moral culpability regarding the offending is the same and it is therefore unnecessary for me to make a finding in relation to these facts.

The parties agree that these facts must be proved on the balance of probabilities because, if found, they are favourable to you in this sentencing exercise in the manner I have described.

Police record of interview

Counsel submits that in your police interview you repeatedly state that the trolleys were pushed onto the road, and in front of you, such that you had to ‘go around’ them when leaving the collision scene. In oral submissions, counsel drew the Court’s attention to several of your statements to police, including:

(a) ‘And, like, and then everyone just started yelling at me, yelling … threw some stuff. Like, I don’t know … just chaotic quick … and, like I said, there were trolleys … I don’t know what they threw or whatever’;[9]
[9]Police Interview Q147–Q151.

(b) ‘Yeah, I just had to, like, go around the people with the trolleys. They ‑ you know, they’re pushing the trolleys towards the front of the car;’[10]
[10]Police Interview Q219.

(c) ‘So from ‑ pretty much like you said, I pulled back in, backed her out, and then on ‑ my driver’s side’s on his side then … and yeah, he was talking, started walking towards the vehicle, and he’s got, you know, just more people – there’s people – there’s a lot of people … and the trolleys … they were going that way originally, and … then they’d swung ‑ you know, started – swung that around, and there’s people coming from this side;’[11]
[11]Police Interview Q578–Q581.

(d) ‘My car got hit, but it was – I did not swerve to – to hit anybody … I took and I left. I went around the trolleys … like, I didn’t swerve at anybody;’[12]
[12]Police Interview Q688.

(e) ‘Well, I … don’t know, like, they were all – coming … with these trolleys, but – and, yeah, people was at me back door, and he’s bloody said whatever, and ‑ yeah, like, it happened quick. My instincts said that, like, “I’ve got to get out of here”, and I went out of there;’[13]

(f) ‘---trolleys were coming from the left. The first one went right past me, like, it – it … went right across … I know obviously what – the second or third one, like, they – I don’t know from where, ‘cause there was trees, I was right up near the curb … and then a tree – curb, onto the road, type of thing’;[14] and

(g) ‘Yeah. Cause trolleys were coming from the right, and a couple come from the left, I said that from the start, all right. And – and I was veering to this way to … to the left just to go around the to – to – that was the congregation of people … Like, I’ve went around them.’[15]

[13]Police Interview Q745.

[14]Police Interview Q969–Q970.

[15]Police Interview Q978–Q979.

The prosecution accepts that you stated that you drove up onto the kerb to avoid the trolleys, however, submits that you did not describe the trolleys as being connected in a long train. It is submitted that it is unclear whether you meant to refer to the trolleys as joined up in the course of the interview. Further, as no other witness described joined up trolleys being pushed towards you, there is no basis to find on the balance of probabilities that the trolleys were joined up and pushed as such.

Similar use of the trolleys prior to the collision

Your counsel submits that the deceased’s group engaged in a ‘pattern of disruptive behaviour’ with the trolleys in the Coles carpark and on Victoria Street when interacting with Ms Crawley (as described above) before your arrival at the collision scene. This evidence, taken together, is said to show a behavioural ‘similarity’ and ‘temporal connection’ to the alleged use of the trolleys.

The defence submits that members of a young group of men acted in a ‘hooligan fashion’ in the Coles carpark, evidenced a note made by the informant dated 17 October 2022 which reads:

Went to Coles at about 2245. When exiting, could see a group of boys running towards the truck (partner’s truck). Car in reverse, two at the back of the tray. I told him to stop. They surrounded the car. They were being idiots, rowdy, Proceeded to walk around the truck. Grabbed a row of trolleys. They were so many of them. Car was moving close enough to [kick].[16] They had bottles. Once surrounded the car, stopped about a minute. Yelling. Don’t know what they were saying. Don’t think they touched the car. They then moved off. Grabbed the trolleys, about 14 in a row, pushed them in front, different group to those surrounding, while being surrounded, trolleys in front. Then he pushed them – on to the road left. We went right. Didn’t want to stop cause group of people, they being idiots. Coles car park. We turned onto Church Street, thinks. turned at where bus stops are. Were clothing bins are. Car. Three‑seater truck. Long‑tray. Silver at front.

[16]Plea transcript, 32.14.

Your counsel further highlights that on Victoria Street, the trolleys were used to ‘terrify’ Ms Crawley. Subject to the below discussion, counsel note that there is no prosecution submission that Ms Crawley’s evidence should be rejected, and therefore Ms Crawley’s statement can be relied upon in this regard.

The prosecution contends that this evidence is tendency evidence which is circumstantial and has weak probative value. Regarding the Coles carpark evidence, the prosecution submits that the police notes relied on by the defence are an unsworn and untested hearsay account. It is submitted that Ms Crawley’s evidence is of questionable credibility as she is your partner, her account is not accepted by any prosecution witness, and her account is contradicted by several prosecution witnesses who either positively state that trolleys were not pushed at cars on the night of the collision, or that they did not see this occur. The prosecution further disputes having accepted in its Summary of Prosecution Opening that trolleys were pushed towards Ms Crawley, and submits that, rather, that part of the Opening merely recounts the witness’ version of events without the prosecution’s acceptance that this is what happened.

Prosecution witness evidence regarding the trolleys at the collision

Your counsel seeks to discredit each prosecution witness’ evidence, or show that each witness impliedly proves the disputed facts as framed by the defence. The prosecution challenges this submission and contends that their witnesses repeatedly contradict or denied said facts.

Travis Lowns

Defence submits that Travis Lowns lied to the jury during the trial with respect to how many trolleys he pushed around on the evening of the collision,[17] where he left the trolleys on Victoria Street,[18] and the trolleys not being used in a threatening manner towards Ms Crawley on Victoria Street.[19] Your counsel also submits that Mr Lowns agreed that the group stole the trolleys from the Coles carpark and pushed them more than half a kilometre.[20]
[17]Trial Transcript, 197.21.
[18]Ibid 208.7.
[19]Ibid 264–264.
[20]Ibid 200.12.

The prosecution notes that Mr Lowns denied that the trolleys were pushed towards you in a threatening matter,[21] and that trolleys were pushed into the position in which they were found after the collision.[22] Mr Lowns stated that he did not see anything on the road at the scene of the collision that would have caused you to veer towards the deceased.[23]
[21]Ibid 235.
[22]Ibid 237.
[23]Ibid 185.

Sam Butterworth

Defence submits that Sam Butterworth denied any hooliganism with respect to the trolleys,[24] agreed that he told the Magistrate at the committal that he left the trolleys in a paddock prior to the collision,[25] and could not recall whether any trolleys were pushed to the location in which they were found after the collision.[26]
[24]Ibid 294.28–29.
[25]Ibid 336.6–10.
[26]Ibid 337.7–8.

The prosecution contends that Sam Butterworth did not remember anything about the trolleys,[27] did not see anyone doing anything with the trolleys after the collision and before police arrived, denied that the trolleys were used to threaten or blockade you,[28] stated that he last saw the trolleys on the corner of Victoria Street and Cool Store Road,[29] and agreed at committal that they had been dumped in a paddock.[30]
[27]Ibid 285.
[28]Ibid 324.
[29]Trial Transcript, 334 and 348.
[30]Ibid 336.

Luke Bennie

Luke Bennie’s evidence was relied on heavily by your counsel. It is submitted that Bennie gave evidence of ‘dangerous behaviour’ involving the trolleys on Victoria Street.[31] Significantly, defence submits that Bennie recalled leaving one trolley in the relevant position prior to the collision,[32] and agreed that other trolleys must have been joined up to that trolley sometime afterwards given the photograph depicting them together.[33]
[31]Ibid 463.26–T466.22
[32]Ibid 486.29–2487.4.
[33]Ibid 535.3–546.30.

The prosecution submits that Luke Bennie only recalled one trolley being pushed to Cool Store Road,[34] and stated that the trolley in which the deceased was pushed was left in grass near two parked cars.[35] The prosecution further highlights your evidence that there was nothing, including any trolleys, on the road that would have caused you to veer towards the deceased,[36] and although there were eight to 10 trolleys on Victoria Street, did not recall seeing that many on Cool Store Road at the site of the collision.[37] Mr Bennie also denied that the trolleys were used to threaten or blockade you.[38]
[34]Ibid 466 and 487.
[35]Ibid 471.
[36]Ibid 479.
[37]Ibid 526 and 536.
[38]Ibid 491, 546 and 550.

Callum Hughes

The defence submits that Callum Hughes offers a further alternative version of events.

The prosecution contends that Mr Hughes’ evidence is that the trolleys had nothing to do with the collision,[39] were not used to threaten or blockade you,[40] and six or seven trolleys were left near an aged care facility and did not make it to McCallum Street nor the collision scene.[41]
[39]Trial Transcript, 365.
[40]Ibid 400–401.
[41]Ibid 335.

Daniel Slocombe

The defence contends that Daniel Slocombe gave evidence that he could initially hear but not see any trolleys, however, eventually did observe the trolleys being used by Mr Ross’ group.[42] Slocombe maintained further that no cars were interfered with on Victoria Street.[43]
[42]Ibid 411.20–22.
[43]Ibid 412.6–9.

The prosecution highlights Slocombe’s evidence that there was nothing on the road that caused you to swerve towards Mr Ross,[44] and he did not recall any trolleys on Cool Store Road,[45] nor how they ended up at the collision scene.[46]
[44]Ibid 424.
[45]Ibid 449.
[46]Ibid 479.

Lochlainn Poustie

Defence counsel submits that Lochlainn Poustie was simply unable to explain how the trolleys ended up where they were located.[47]
[47]Ibid 579.9–10.

The prosecution contends that Mr Poustie’s evidence is that he collected over 10 trolleys from Coles supermarket,[48] walked the trolleys to Cool Store Road with the assistance of Tim Wisneske,[49] left the trolleys on the corner of Cool Store Road and Victoria Street,[50] which was the last place he saw them,[51] and observed you directly swerve into the deceased despite having a clear path away from the collision scene.[52]
[48]Ibid 553.
[49]Trial Transcript, 553.
[50]Ibid 579
[51]Ibid 554.
[52]Trial Transcript, 556.

Tom Wisneske

The defence submits that Tom Wisneske agreed in the course of cross‑examination that the trolleys were pushed to McCallum Street,[53] which is said to be about 40 metres from where they were in fact found near the collision scene.
[53]Ibid 623.8–9; 630.9–10.

The prosecution contends that Wisneske’s evidence is that four or five trolleys were pushed in a train together,[54] and that Lochlainn Poustie pushed the trolleys on Victoria Street, whilst Wisneske assisted when on Cool Store Road,[55] and that Wisneske also pushed the trolleys towards McCallum Street.[56]
[54]Ibid 604.
[55]Ibid 622.
[56]Ibid 623.

Further submissions

With respect to the photograph of nine trolleys connected together and located approximately 40 metres from the collision scene, the prosecution submits that all eyewitnesses to the collision agree that they did not observe the trolleys being moved to this location following the collision. This, the prosecution contends, supports the conclusion the trolleys did not cause you to veer towards the deceased.

Analysis and conclusions regarding the disputed facts

The circumstances regarding the involvement of supermarket trolleys in the events leading up to Mr Ross’ death occupied a significant amount of time during the trial and plea hearing in this matter. With respect to these circumstances, your counsel submits that the resolution of whether there was aggression on the part of Mr Ross’ group of friends, the use of trolleys, and whether the actions you took were defensive or aggressive, are matters relevant to the assessment of the seriousness of your offending, and your level of moral culpability.

During the trial I heard and saw the evidence given by the witnesses and have considered your police interview. Some of the evidence is summarised above. As observed, there is a significant degree of variation in the accounts on this topic.

Ultimately, it is difficult to be sure with any precision where the truth lies, however, I am prepared to accept that following celebrations at the hotel, a number of Mr Ross’ group proceeded to Mr Ross’ house to continue celebrating. Some were likely significantly inebriated and, after they left the hotel, various members, without permission, took a number of supermarket trolleys and rolled them in a line along the streets near the collision site. There is some independent CCTV footage that confirms this. The evidence satisfies me that, on occasions, various group members used the trolleys to harass motor vehicles travelling on these streets, including your partner’s car. But for Ms Crawley’s complaint to you about her experience, there appears little reason for you to have driven into that area. I cannot say who the people were who used the trolleys in the way they did.

I am satisfied that in the moments before the impact with Mr Ross, a number of males approached your car and ‘words’ were exchanged. There was a degree of annoyance or anger involved in this confrontation, most likely from both sides. I am satisfied that a number of supermarket trolleys were in the vicinity and were most likely near your car. A number of young men were also near your car, and acting in a manner you perceived as aggressive and intimidating. Precisely what happened with the trolleys is difficult to determine, mostly due to the variable evidence and degrees of reliability of that evidence, but I am satisfied that at some point you accelerated your vehicle away from those who were confronting you and towards persons who were on the other side of the road. As to what went through your mind, and your motivation, I cannot conclude, but I am of the view that your actions were not deliberate, and you did not intend to hit anybody. Importantly, I do not conclude that you aimed your car at anyone. However, I am satisfied that you knew at some point there were people in the direction you were travelling, and you were recklessly indifferent to their presence.

You drove in a dangerous manner, to which you have pleaded guilty, albeit driving at a speed of somewhere around 30 to 40 kilometres per hour. Whether you panicked and tried to get away, felt you had to get away, were angry, or just lost patience with the situation, I cannot say. Whichever it was, you should have recognised that you were driving a motor vehicle towards a number of people who were on foot, and therefore were vulnerable. At the same time, I am prepared to acknowledge that the overall circumstances are likely to have been confused, and to have occurred in a short time frame.

I accept that, on the available evidence, in the prevailing circumstances you may not have realised that you ran over a person, and that you may have run over a kerb, and to that extent I will not act on the basis that you left the scene of these events in an effort to escape detection or apprehension. I am not prepared to make such a finding to the required standard.

Analysis and conclusions regarding sentence
Nature and seriousness of the offending

Regarding the nature and seriousness of your offending, I am of the opinion that, given all of the circumstances, your offending should be regarded as below the mid‑range for the offence of dangerous driving causing death. Your offending did not involve a momentary or inadvertent lack of attention, instead you accelerated your car towards a number of people who were either on or beside the road near the kerb. In your position as the driver, you must have known that the pedestrians were in front of your vehicle when you drove towards them. Furthermore, there is no suggestion that you were not able to control the passage and direction of the vehicle. I note that I take into account that you were licenced to drive a motor vehicle, and you were not affected by alcohol nor driving above the applicable speed limit.

Despite these matters, the fact remains that you were in a motor vehicle and protected by this position, whilst the pedestrians were not and thus were vulnerable.

Moral culpability

With respect to your culpability, as I have said, I do not sentence you on the basis that you set out to hit anyone with your car, nor did you aim it at anyone. I am prepared to conclude that you were reacting to a set of events involving, at least, a verbal confrontation stemming from circumstances the initiation of which you were not involved. I accept that you were confronted by a number of young men, some of whom were likely intoxicated and loud, and, subjectively, you felt under threat or pressure.

In all of the circumstances, I assess your level of moral culpability as between the lower to mid‑range.

Matters in mitigation
Plea of guilty and remorse

As I have noted, after being charged with murder and the trial aborted, you have pleaded guilty to the offence of dangerous driving causing death. It is submitted on your behalf that your plea should be regarded as having been made at the earliest opportunity. I accept that you offered to plead guilty to this offence at an early stage, and that this was rejected by the prosecution and your trial proceeded. Therefore, your plea has utilitarian value, which was submitted by your counsel and accepted by the prosecution. I accept that you have endured a degree of stress, anxiety and uncertainty as a result of being charged with murder, and I also accept that had you initially been charged with dangerous driving causing death, there was a higher likelihood that you would have either been granted bail, or at least would have been remanded in the absence of the particular stress and anxiety associated with a murder charge.

Regarding remorse, I accept that you did not set out to injure anybody when you drove your car towards various people. I am prepared to accept that you are sorry for what happened, and you have expressed regret at the death of Mr Ross.

In my opinion, the fact that you are sorry for what happened is relevant to the assessment of your rehabilitative prospects, specific deterrence, and the need for community protection.

Sentencing purposes

Section 5 of the Sentencing Act 1991 (Vic) sets out the sentencing purposes and I have had regard to each of them. It is not disputed that general deterrence, specific deterrence, just punishment and denunciation feature as important sentencing purposes for your type of offending.

It is accepted that in cases of dangerous driving causing death, general deterrence is a primary sentencing consideration. At the same time, this should not overwhelm the sentence to be passed. That observed, in cases involving the dangerous driving of motor vehicles, a message needs to be sent to drivers that motor vehicles are to be operated safely in accordance with the road traffic laws and regulations. Similarly, denunciation is also an important consideration in cases such as this. Your conduct in dangerously driving the vehicle must be denounced on behalf of the community. Pedestrians are particularly vulnerable to death or injury when motor vehicles are not operated safely.

With respect to specific deterrence, community protection and rehabilitation, I am satisfied that, despite your historical drug use, your prospects of rehabilitation are reasonable given your stable employment history, and family support, including that of your partner. You have used your time in custody wisely, as has been explained. In all of these circumstances, I do not consider that the sentencing purposes of special deterrence and community protection require particular emphasis in the sentence to be passed.

Comparative cases and sentencing practices

The Court was provided with examples of past sentencing decisions in cases of dangerous driving causing death. I have reviewed those decisions and have had regard to the current sentencing practices.

Sentence indication

As I have observed, the sentence indication provided on 30 July 2024 indicated that, should you plead guilty to the offence of dangerous driving causing death, the maximum total effective sentence I would impose was sentence of four and a half years’ imprisonment with a non‑parole period of three and half years. I also stated that, given the indication was given prior to a full plea hearing, that indication represented a ceiling and not a floor, and was not a final determination.

Sentence and declarations

Having taken into account all of the factors discussed above, you will be sentenced to four years’ imprisonment.

I will order that you serve three years’ imprisonment before being eligible for parole.

Pre‑sentence detention

I declare that 865 days be reckoned as time served.

Licence cancellation

The offence to which you have pleaded guilty carries mandatory driver’s licence cancellation, and disqualification from driving for at least six months. In all of the circumstances, I order the cancellation of your driver’s licence and disqualification from obtaining a licence for a period of two years from the date of this sentence.

Section 6AAA declaration

I declare that pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you not pleaded guilty to the offence before the Court, you would have been sentenced to a period of six years’ imprisonment with a non‑parole period of four and a half years.

[2025] VSC 67

20 February 2025